Model Rule 1.1

Travelling abroad for work? What should you do if a Customs and Border Patrol agent, claiming lawful authority, demands that you unlock your computer or thumb drive or cell phone — full of client confidential information — and hand it over to be searched as you cross the U.S. border?

The confidentiality concern is more than hypothetical. According to the Department of Homeland Security, in February 2017 alone, CBP agents searched more than 5,000 cell phones, laptops and other devices. That’s as many searches as in all of 2015. CBP policy apparently permits U.S. customs agents to review any information that physically resides on travelers’ electronic devices, with or without any reason for suspicion, and to seize the devices pending inspection.

The ABA voiced concern in May, requesting that the Department of Homeland Security revise CBP’s procedures in order to better protect client confidential information from search or seizure at border crossings.

Evasive tactics necessary?

Under every state version of Model Rule 1.6, you have an ethical duty to safeguard the confidentiality of client information in your possession, and “few principles are more important to our legal system,” the opinion notes.

The thoroughly-reasoned and detailed New York opinion concludes that Rule 1.6, coupled with Rule 1.1 (Competence), raises obligations before a lawyer approaches the U.S. border; at the border when an agent seeks access to a device; and after an agent has reviewed clients’ confidential information.

Before crossing the border, Rule 1.6(c) and its comments, which require “reasonable efforts to prevent … unauthorized access to” client confidential information, means that you must take reasonable precautions in advance to avoid disclosing such information unless authorized by the client (which is unlikely). Depending on the circumstances, including the sensitivity of the information, these efforts may include not carrying any client confidential information across the border. If so, the opinion suggests: securely backing up client information and then crossing the border with a blank “burner” phone or laptop; turning off syncing of cloud services; signing out of web-based services; and/or uninstalling applications providing local or remote access to confidential information.

At the border, Rule 1.6(b)(6) and its comments come into play. It permits lawyers to disclose confidential information to the extent reasonably believed to be necessary when required “to comply with other law or court order,” including “a governmental entity claiming authority pursuant to … law.” But, the opinion cautions, disclosure is not “reasonably necessary” to comply with law if there are reasonable lawful alternatives to disclosure. The opinion concludes that “it would be an unreasonable burden” to require a lawyer to forgo entering the U.S. or to allow herself to be taken into custody or litigate the lawfulness of a border search. But the opinion also says that lawyers have a duty not to comply “unless and until” the lawyer “undertakes reasonable efforts to dissuade border agents from reviewing clients’ confidential information or to persuade them to limit the extent of their review.” To facilitate that challenge, you should carry ID confirming that you are a lawyer, notify agents that your device has client confidential information on it, request that the agents limit their review, and ask to speak to a superior officer, says the opinion.

After a search or seizure of client confidential information, Rule 1.4 (Communication) requires that you notify affected clients about what occurred and the extent to which their confidential information may have been reviewed or seized. That communication will let the client decide on possible responses, including a potential legal challenge.

Globe-trotting implications

Tennessee ethics lawyer Brian Faughan shared his comments on this opinion under the headline “Practicing law like it’s espionage.” The ways to carry out the potential duty to avoid taking confidential information across U.S. borders, as well as the other recommendations in the New York opinion, indeed make me think of spy craft, and to wonder if we are entering the world of novelist John LeCarre. That’s an uncomfortable thought — but under the reasoning of this opinion, such considerations are necessary as a matter of ethics.

What if you suddenly became disabled and couldn’t handle your law practice? Or, if you were to die, who would deal with your pending matters? Who has the password for your computer? Who knows where you bank? The Ohio Board of Professional Conduct last week published an ethics guide titled “Succession Planning” that addresses these issues, and it’s worthwhile reading if you practice on your own or in a small firm, in any jurisdiction.

Trendlines point to need for planning

Two trends are converging that underscore the topic of succession preparedness: the predominance of solo and small firms, and the graying of the profession.

The ABA reports that in 2005, 63% of all private practitioners were in firms of fewer than five people. And 49% practiced on their own. (Seventy-five percent of U.S. lawyers were in private practice in 2005.)

And we are not getting any younger — in fact, the opposite. The median age of lawyers in 2005 was 49; 13% were over 65 years old. And recent trends are going to increase the proportion of older lawyers: total J.D. enrollment between 2011-12 and 2013-14 decreased by 12%, or by more than 17,000 students. First-year law school enrollment decreased by 29% between 2010 and 2016, and for the 2016-17 school year it remained flat over the previous year.

Be prepared

The Ohio ethics guide notes that “failing to plan for the unexpected can result in harm to clients and in confusion and hardship for the lawyer’s family, staff and professional colleagues.”

Every state’s lawyer conduct rules has some version of Model Rule 1.1 and 1.3, dealing with competence and diligence, and the Ohio guide notes that while having a succession plan is not mandated by the Ohio rules, having a plan “can be viewed as a continuation of a lawyer’s duty of competent and diligent representation.”

Some jurisdictions go further. As of June 2015, the ABA reported that several specifically addressed succession planning in their conduct rules, registration rules or in comments. (A state-by-state chart is here.) For instance, Florida requires the designation of an “inventory attorney,” who can agree to take action in the event of a lawyer’s death or disability. Indiana provides as part of its annual registration process for permissive designation of an “attorney surrogate.” South Carolina’s Rule 1.19, “Succession Planning,” says that lawyers “should prepare written succession plans” in anticipation of their death or disability.

What to do & who can help?

The Ohio guide points to several components of a succession plan, which will help avoid the burden on your family and possible prejudice to your clients if the unexpected happens:

a written agreement with a designated successor lawyer;

information on the status and location of open and closed client files;

information on leases, insurance, key vendors and other details needed to wind up a law practice, if needed.

Here in Ohio, two city bar associations have specific programs and resources. My hometown bar, the Cleveland Metropolitan Bar Association, has a “What-If Preparedness” program, with a site that links to a wealth of material, including forms. The Columbus Bar Association has a program called the “Advance Succession Registry.” Details are here. The ABA likewise has resources and links, including to jurisdiction-specific materials.

Think about the unthinkable

Thinking about death and disability is never easy — for lawyers or anyone else. But coming to grips with these topics and taking action can put your mind at ease that you have protected your clients and minimized a possible future burden on those you love. That’s worth doing, no matter how difficult.

There should be a word that’s the opposite of “schadenfreude” — you know, that evocative German term that means “secret pleasure at another’s misfortune.” Maybe there is such a word, but the one I’m searching for would convey the sense of “Please, let me not fall into the same error” as some other person did, because under the right (or wrong) circumstances we can all make ethical mistakes. Here are three cautionary tales. You may read them and wonder how the lawyers involved came to such grief — or you may just be thankful that it wasn’t you, or that the demons these lawyers struggled with aren’t yours.

If you’re carrying meth, don’t forget your briefcase.

A Colorado lawyer left his briefcase in a courtroom overnight. The judge’s law clerk found it and identified the lawyer by looking at the documents in the briefcase. Unfortunately, as the disciplinary opinion describes, “a vial of white power and a syringe were also in the briefcase; a field test by courthouse deputies identified the power as methamphetamine.” The lawyer retrieved the briefcase later and identified it as his.

A month later, police responded to a domestic violence call at the lawyer’s home. His spouse told police that after the spouse found meth in the home and confronted the lawyer, the lawyer assaulted the spouse.

The lawyer also neglected clients in six cases, including leaving a client at trial without counsel, and failed to refund at least $7,000 in unearned fees, constituting conversion of client funds.

The court ordered disbarment for among other things, violating the state’s version of Model Rule 8.4(b), which makes some types of criminal conduct into ethical violations. The court said that it could not consider any mitigating factors, despite the circumstantial evidence of the lawyer’s difficulties, because the lawyer failed to participate in the disciplinary case.

If you’re driving, wear a seatbelt.

A California deputy district attorney and her co-worker got pulled over and received citations for the D.A.’s failure to wear a seatbelt. The D.A. called a family friend, a sergeant in the police department’s traffic division, who agreed to dismiss the citations without talking to the traffic officer. The D.A. then told her co-worker to destroy co-worker’s own citation, but co-worker refused.

The D.A. was tried and found guilty of conspiracy to obstruct justice, and two counts of altering a traffic citation — all misdemeanors. The appeals court affirmed the conviction. And in an order that took effect in November 2016, the D.A. was suspended for 60 days, ordered to take the Multistate Professional Responsibility Examination, and placed on two years’ probation. In aggravation, the court found that the D.A.’s conduct damaged the integrity and credibility of the criminal justice system and the legal profession.

If you work at a firm, hand over the client fees.

A former partner in a Utah law firm worked on two client matters and directed that firm personnel write off some or all of the fees. The client in each matter did construction work at the partner’s home: one built a shed worth more than $15,000 and had all his legal fees written off and his retainer refunded; one built a railing for the partner, received $3,500 in cash from the lawyer for the work, and had more than $7,000 in legal fees written off, with the firm receiving just $700.

Each client testified that he had a deal with the lawyer to provide construction work in exchange for the lawyer’s legal services.

The district court concluded that the lawyer had violated the state’s version of Model Rule 8.4(c), barring dishonesty, fraud, deceit and misrepresentation.

As a sanction, bar counsel argued for disbarment, which is the presumptive sanction for misappropriating funds. The lawyer argued that misappropriating funds from his law firm didn’t rate the same sanction as stealing from clients, and on its review, the state supreme court agreed, in an opinion suspending the lawyer for 150 days.

The court wrote that “that not all misappropriation is created equal. Misappropriation of firm funds does not ‘undermine the foundations of the profession and the public confidence’ in the same way that misusing client funds does,” and does not merit the same presumptive sanction.

Be careful out there

Takeaways? (1) If your friend, associate or law partner is grappling with addiction or any other brain disease or mental health issue, reach out to your state’s lawyer assistance program. It just might save their life, in addition to their license. A list of every state’s program is here. (2) Keep your moral compass in front of you at all times. And, oh yes: (3) Buckle up when you’re behind the wheel.

Technophobia isn’t confined to U.S. lawyers. No surprise, it affects Canadian members of the bar, too, with the same potentially disastrous results. A cautionary tale: a lawyer who was technologically illiterate failed to supervise his wife, who ran his office and used his bar credentials to misappropriate more than $300,000 without his knowledge. Canadian disciplinary authorities last month permitted him to surrender his license voluntarily, instead of revoking it.

“Complete care and control”

First reported under the apt headline “Dinosaur in the Dark” over at Legal Profession Blog, the opinion describes how from 1996-2013 the lawyer totally abdicated administrative responsibility for his corporate and real estate practice to his non-lawyer wife, who served as his “law clerk.”

The 68-year-old lawyer had started out as a corporate/commercial litigator with a firm, where his practice was supported by an extensive staff and he never had to learn the nuts and bolts of running an office. Nested in this comfortable cocoon, he remained technologically ignorant: he dictated all his correspondence and documents; he did not access his own e-mail account, and “did not even know how to turn a computer on;” all accounting responsibilities were taken care of for him.

When the firm folded 22 years after he joined it, the lawyer began a solo practice, including real estate, running it out of his home with his wife as his clerk. The wife, who had always dealt with the family finances, now took on all the tasks of running the business end of the law practice as well — she had “complete care and control” over the firm finances, had full access to the business account and trust account, opened all the mail and supposedly attended to all the bills and accounting.

The lawyer continued to be ignorant of all things technological — he did not even use a cell phone. He remained unaware of Ontario’s mandatory Teranet system, the electronic registration facility implemented in the late 1990’s, in which client financial transfers and charges are required to be registered electronically using a computer key unique to the lawyer to whom it is issued. The wife obtained the key on the lawyer’s behalf and used it without his knowledge, authorization or supervision.

Recipe for disaster

You can see where this sad story is headed. When the income from the law practice failed to meet the couple’s modest expenses, the wife started robbing Peter to pay Paul out of the client trust accounts. She testified “I always thought it would be a temporary thing. I always thought things would get better and we’d … have more work or come into money, or something and I’d pay it all back.”

The wife’s delusional scheme continued based on the lawyer’s ignorance; he never saw e-mails that came from the bank or, eventually, from disciplinary authorities, and his wife intercepted postal mail and even phone calls that would have alerted him to the problems. She admitted that she kept the lawyer totally in the dark about her increasingly desperate misappropriations. Eventually, $373,000 in client funds had been misappropriated and more than $530,000 had been “misapplied.”

Keeping your eye on the ball

The house of cards finally fell after disciplinary authorities carried out a random “spot audit” of the firm. (The 30-year marriage apparently ended, too.) The lawyer was allowed to surrender his license by agreement, rather than having it revoked, partly because of his remorse, admitted misconduct and the wife’s admitted deception.

The lawyer’s counsel described him as a “dinosaur,” and the disciplinary opinion said he “refused or could not be bothered to become computer-literate, during a time when the practice of law and business in general was evolving rapidly and becoming much more dependent on electronic media and devices.”

Here in the States, of course, Model Rule 1.1 cmt. [8] says that the duty of competence means that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Here, the lawyer was found to lack “the technological knowledge necessary to conduct a successful legal practice in the twenty-first century.”

Although the lawyer had every reason to trust his wife, being so ignorant that he could not “actively review and supervise” her actions was misconduct, as it would also likely have been under our Model Rule 5.3.

These circumstances make for sad reading, to be sure, but as we’ve pointed out a couple times before, you have to keep up with the times.

What happens when your ethical duty of competence meets up with an emergency situation where you are called on to give legal advice — immediately? I was thinking about this question because of a ruling that the Ohio Supreme Court handed down late last month, holding that the state’s Good Samaritan law applies to any person administering aid at the scene of an emergency, and not just health care professionals. I wondered whether a Good Samaritan concept applies to “emergency legal services.”

Duty of competence — even in an emergency?

Model Rule 1.1 of course requires you to bring to each situation the “legal knowledge, skill, thoroughness and preparation reasonably necessary.” It turns out that Comment [3] addresses emergency situations — and it takes a somewhat wary approach. The comment says that “In an emergency a lawyer maygive advice or assistance in a matter in which the lawyer does nothave the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical.”

But, caution is called for: “Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client’s interest.”

You might think of several kinds of extreme situations that could call for emergency lawyering. One hypothetical that has cropped up in various permutations on the Multistate Professional Responsibility Examination, for instance, is a tax lawyer who stops at the scene of a car accident and the dying accident victim begs the lawyer to write down the victim’s last will and testament. The correct answer is that the lawyer would not be subject to discipline for helping out, even if the lawyer doesn’t know how to write a valid will.

How about malpractice liability if the will is invalidated? Well, there would certainly be issues about whether that tax lawyer had any duty to the third parties bringing suit. But in addition, courts routinely look to the Rules of Professional Conduct to supply the standard of care, even though the Rules themselves do not provide an independent basis for tort liability. (See Model Rules Preamble, cmt. [20].) So, on a showing that the lawyer’s help was urgently required, that no referral or consultation was practical, and that the legal assistance was limited to what was necessary under the circumstances, I’d say that the lawyer should get out of a malpractice case on summary judgment.

Hurricane Katrina and its lessons

The issues regarding emergency lawyering got a real-life workout in the aftermath of Hurricane Katrina in 2005. Many lawyers were displaced; and many lawyers from outside the crisis areas volunteered their legal services. The situation raised multiple ethics questions, including regarding competence, multi-jurisdictional practice, conflicts of interest and client solicitation. In an interesting 2009 article for the ABA’s Professional Lawyer magazine, two Louisiana attorneys discussed how these issues were addressed on the ground, and how they might be addressed in future natural disaster situations.

On the competence issue, the Louisiana State Bar Association’s ethics committee quickly issued a September 2005 opinion applicable to that state’s licensed lawyers. While giving approval to working an advice hotline, or providing on-the-spot legal services at a booth, the opinion took a conservative approach: “The Committee warned that hotline callers are desperate for help and likely more vulnerable than average clients; thus the Committee discouraged lawyers who lacked the competence in the specific, relevant area of law from volunteering, as doing so could cause more harm than good.” The opinion advised that lawyers should decline to provide advice in areas unfamiliar to them, and should refer clients, instead.

Put your own oxygen mask on first

So there’s no unqualified Good Samaritan protection under the Model Rules for lawyers giving emergency advice. As in other situations, your home jurisdiction may have its own rule and/or ethics opinion, and they could certainly provide helpful guidance in case of a natural disaster situation, such as a hurricane.

But what if you find someone injured on the side of the road, and they need emergency lawyering? I know that I’d help write that last will and testament and think about the consequences later.

You know those e-mails out of the blue that start “We would like to engage you to handle our $1 million legal matter”? From our friends over at Lawyerist.com comes a description of what happened when Steven Chung, an L.A. tax attorney, actually took the bait and pursued one of those invitations.

Chung’s story is headlined, “Dear Lawyers, if a client you never met sends you $350,000, it’s probably a scam” — and of course it was a scam, although the tale ends happily, and Chung avoided getting ripped off.

Set-up for a scam

Here’s how it unfolded: The “client,” supposedly located in an Asian country, asked for representation to file a visa application for an executive who needed to work in the U.S. Chung asked for a retainer in advance; the potential client asked for an engagement letter.

In the meantime, Chung started digging around, and several things didn’t check out:

although the company was apparently real, its purported e-mail address was a Gmail account that anyone can open for free;

the “executive” had a LinkedIn profile, but had only four connections, none of whom were connected to the company;

other websites did associate the executive with the company, but again, the potential client could have set those up.

With his Spidey sense tingling, Chung turned down the work and thought that would be the end of the matter. Instead, the client dangled some more bait: $350,000 that Chung would receive from one of the company’s customers “from an unpaid invoice,” and from which Chung would be able to deduct his fee. At that point, Chung writes, he “shifted from wariness to the full-fledged realization that this was a scam.” Chung decided to ignore the communication.

Then, a check for $350,000 arrived in the mail. It certainly didn’t check out:

The return address was from California — but the envelope bore non-U.S. postage.

The check was drawn on the Bank of Nova Scotia, though the business had no presence there (and many check scams seem to use Nova Scotia banks).

Temptation…

Chung writes that it was “hard to ignore my name attached to the receiving end of a $350,000 check,” but if he had cashed it, it “could immediately be returned for insufficient funds, at which point either the sender would make an excuse, or possibly accuse me of stealing money and try to blackmail me. Or the check would be placed on hold by the bank and in the meantime, either the sender or the potential client would ask that I repay them immediately before the check cleared. Assuming I had a spare $350,000, that money would be transferred and likely never be seen again after the check bounced. Worst of all, I could have transferred existing money in my trust account, which can result in ethics violations.”

Chung didn’t fall for it, but he kept the check as a memento.

How to avoid the peril

Last year, we wrote about an ethics opinion from the Association of the Bar of the City of New York, which identified an ethical duty to exercise “reasonable diligence” in avoiding internet-based scams like this. That is certainly an opinion to take to heart, because of the potential for client harm, as well as the obvious downside to you and your firm.

Chung did well to unmask the scam. You, too, can avoid being a victim. We agree with Chung’s advice:

Just say no, and don’t respond to unsolicited requests for legal representation.

If you do respond, “make sure that their documents match their stories.”

“Don’t be afraid to ask the tough questions.”

“Finally, and most importantly, do not send any money until all checks clear. Don’t be afraid to wait for an extended period.”

Although Chung did not opt to report the scam, you should consider doing so if you find yourself faced with one. You can report suspicious e-mails to the FBI’s Internet Crime Complaint Center (www.ic3.gov).

Since it debuted in the U.S. a couple weeks ago, Pokémon Go has become a nationwide phenomenon. If you’re like I was, you may need a primer in order to understand what the hoopla is about. The smartphone game was launched by Nintendo and The Pokémon Company. It involves capturing and “training” phantasmagorical creatures called Pokémon, who feature in a longtime videogame franchise. And yes, there’s an ethics issue for you to think about.

“What makes the game special is its use of augmented reality, where Pokémon will appear [on your phone] as if they’ve been spotted in the real world. The game presents a map powered by GPS, using real-world locations to spot Pokémon and collect items. When you find one, the game opens up your smartphone’s camera, giving you a view of Pokémon in the real world. Once you spot them, you flick a Poke Ball toward the creature to capture it.”

So, when you see people — and they’re all ages — walking around gazing down at their phone these days, they may well be engrossed in playing the game.

First of all, be careful! People have reportedly been injured because they weren’t paying attention to their surroundings in their quest for getting to the next level of the game. Two players fell off a cliff near San Diego, for instance, and had to be rescued.

The obvious ethics issue is your duty of competence under your jurisdiction’s version of Model Rule 1.1. Comment 8 says that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…”

Twenty-one jurisdictions have already adopted the comment, which came into the Model Rules in 2013. But even if your jurisdiction is not one of them, your general duty to have “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation” still means you need to understand technological developments sufficiently to be able to advise your clients.

We had occasion to make the same observation about the many legal issues connected with the internet of things — you need to know this stuff because your clients are looking to you for advice and counsel on it. As legal tech guru Bob Ambrogi has said, “You cannot assess the benefits and risks associated with various kinds of technology if you know nothing about the technology.”

Potential hot issues

The ABA Journal has collected some of the developing legal issues with Pokémon Go:

“Does placing a Pokémon character on a private property, without permission, affect the owner’s interest in exclusive possession?”

What about putting the creatures in potentially dangerous places — has that created an attractive nuisance?

An augmented reality game like Pokémon Go can lead to competition for the use of the same physical space. What if that disrupts the ability of players or non-players to enjoy the same space? What if it leads to violence? Who’s liable?

What First Amendment rights might be involved if government limits the players in a public space?

What about the game’s terms of service? They “disclaim liability for property damage, personal injury or death while playing” Pokémon Go, “as well as claims based on violation of any other applicable law.” How well will that disclaimer hold up? There’s also a notice “that generally requires arbitration of disputes,” a contested provision in many contracts.

Clients may come to you with these and other novel questions related to Pokémon Go or other augmented reality games, as they become a bigger part of our modern lives. You’ll need to research and analyze the issues if you have clients that might be affected — and many clients will be.

The take-away is to be aware of how these issues may affect your clients, because competent representation involves giving informed advice — not “off the cuff” answers.

About this Blog

The Law for Lawyers Today is a resource for law firms, law departments and lawyers needing information to meet the challenge of practicing ethically and responsibly. Here you’ll find timely updates on legal ethics, the “law of lawyering,” risk management and legal malpractice, running your legal business— and more.

About Thompson Hine

For more than a century, Thompson Hine has been committed to excellence on behalf of our clients, our people and the communities in which we live and work. Clients rank us among the top firms in the United States for client service year after year, and we are proud of the accolades we have earned in recognition of our capabilities and leadership.